Whether the Department was justified in refusing access to certain information contained in a record relating to a settlement awarded under the Garda Síochána Compensation Act on the basis of section 37(1) of the FOI Act, and in its effective reliance on section 15(1)(a) to refuse access to additional records 

9 January 2023

Background

The applicant in this case is represented by a family member and a solicitor. All references to the applicant in this decision should be read as a reference to the applicant, his family member, or his solicitor, as appropriate.

In a request dated 29 July 2021, the applicant sought access to 11 categories of records held by the Department relating to a settlement he was awarded under the Garda Síochána Compensation Act. In a decision dated 15 September 2021, the Department part-granted the applicant-�s request. It identified 12 records relating to his request, nine of which it released in full. The Department relied on sections 29, 31, 35 and 37 of the FOI Act to refuse access to the remaining records in full or in part.

On 12 October 2021, the applicant made an internal review request. On 24 November 2021, the Department varied its original decision and released record 8 in part (which had originally been withheld in full). It solely relied on section 37(1) of the FOI Act to withhold access to the remaining information in the records at issue (records 1, 2 and 8 in part).

On 12 May 2022, the applicant applied to this Office for a review of the Department-�s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between the parties as set out above, to the material and submissions provided by the applicant to this Office and to the submissions made by the FOI body in support of its decision.  I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

During the course of this review, the Department changed its position and released record 8 in full to the applicant. As the applicant appeared to be of the view that additional records should exist, this Office-�s Investigator asked the Department to provide details of the steps taken to locate relevant records in this case.

The information withheld from release in record 1 is the file number, name and amount of the award made under the Garda Compensation Scheme to a third party. In correspondence with this Office, the applicant indicated that he was seeking this information for comparison purposes. Having carefully considered the applicant-�s FOI request, I am satisfied that this information does not come within the scope of his request in this case. It is, of course, open to the applicant to make a new request for record 1 in full.

This review is therefore concerned with whether the Department was justified in refusing access to record 2 in part under section 37 of the FOI Act, and its effective reliance on section 15(1)(a) to refuse access to additional records.

Preliminary Matters

I note that in his request for an internal review, and in his submissions to this Office, the applicant made a number of references to the General Data Protection Regulation (GDPR), and data protection, in particular in reference to the personal data of deceased individuals. It is important to note that, as set out by the Investigator in an email to the applicant dated 1 November 2022, this Office has no role in relation to a review of an FOI body-�s functions relating to data protection.

I also note that the applicant questioned and/or commented on the content of a number of the records, which had been released. Generally speaking, requests for information and/or asking questions relating to the content of records released under FOI are not viewed as valid FOI requests. The applicant has confirmed that he understands this.

Finally, it is also important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether the decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for the relevant records. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as the practices relate to the records in question.

In its original decision, the Department outlined the searches taken to locate records relating to the applicant-�s extensive request. It stated that it searched two locations -� the hardcopy file relating to the applicant-�s compensation case and an archive document library associated with Garda compensation generally. It stated that as the case pre-dated the current Garda compensation digital system, the only records located were contained in the physical file.

In his internal review request, the applicant queried page and reference numbers on the records released, which gave the impression that they might form part of a larger file or that further records might exist. When asked to address these queries by this Office, the Department stated that the relevant file had been dormant since 1991. It also stated that no staff members remained in the Department who had worked there in 1991 or who would be familiar with the filing practices in place at that time. While it could not explain the reference numbers concerned, essentially, the Department-�s position is that it holds one hardcopy file relating to the settlement awarded to the applicant in this case, from which it located relevant records.

During this Office-�s review, the Investigator notified the applicant of the details of the Department-�s submissions and invited him to submit any further comments he might have on the matter. In his response, while the applicant provided further background information in relation to the circumstances leading to his compensation award and the lasting effects on his family, he provided no substantive comments on the searches undertaken by the Department, nor did he provide any further evidence to suggest that further relevant searches might be warranted.

It is important to note that the FOI Act is not concerned with access to records that a requester believes ought to exist. Rather, the question I must consider in this case is whether the Department has taken reasonable steps to locate records relating to the applicant-�s request. Having regard to the details of the Department-�s submission and to its explanation as to why it considers that additional records do not exist, I am satisfied that it has. Accordingly, I find that the Department was justified in its effective refusal to release additional records under section 15(1)(a) of the FOI Act.

Section 37

Record 2

The information withheld from release in record 2 is a single sentence referring to an individual who is deceased. Section 37(1) provides for the mandatory refusal of access to a record if it would involve the disclosure of personal information of parties other than the requester, including personal information relating to a deceased individual. Section 37(1) is subject to the other provisions of section 37.

Section 2 of the FOI Act defines "personal information" as information about an identifiable individual which would, "in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual", or is held by an FOI body on the understanding that it would be treated as confidential. It goes on to list 14 specific categories of information that comprise personal information. Of these, the following categories seem to be of most relevance to the present case: (iii) information relating to the employment or employment history of the individual; (v) information relating to an individual in a record falling within section 11(6)(a) (that is, a personnel record), (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual and (xiv) the views or opinions of another person about the individual.

Having regard to the specific information withheld by the Department, I am satisfied that it falls under the definition of personal information as set out above. Accordingly, I find that section 37(1) applies to this information.

Section 37(2)

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arises in this case.

Section 37(8) -� records relating to deceased persons

Regulations made under section 37(8) of the FOI Act provide for the release of information about deceased persons to certain categories of requester (such as the next of kin) in certain circumstances. The applicant is not in any of these categories and therefore I need not consider the Regulations, other than to note that the Regulations recognise the public interest in the confidentiality of personal information relating to the deceased.

Section 37(5) -� the public interest

The public interest test in many of the exemptions in part 4 of the FOI Act require the balancing of the public interest factors in favour of and against the release of the records concerned. Section 37(5) differs in that it provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.

No argument has been made by the parties concerned that the release of the information at issue would be to the benefit of the third party concerned. Accordingly, I find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.

When considering the public interest, it is important to have regard to the comments of the Supreme Court inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26. It is noted that a true public interest should be distinguished from a private interest.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have also had regard to the findings of the Supreme Court inThe Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors[2020] IESC 57. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She also said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure. While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Furthermore, McDermott J, in his 2016 judgment in the case of F.P. v The Information Commissioner [2014] 114 MCA, which was subsequently upheld by the Court of Appeal, said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that -�the -�public interest-� in granting access is not to be determined on the basis of the appellant-�s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.-�

The applicant

The applicant stated that he and his family had been harassed -�for a period of years-� and that the -�identity of the person/s was protected by the Gardaí and the Department of Justice-�. He argued that the -�supposed person orchestrating the harassment-� was deceased, and that therefore, their identity should be disclosed. The applicant made no further arguments which could be construed as public interest factors in favour of the release of the information withheld.

The Department

In its original decision, the Department stated that the factors it considered in favour of the release of the information withheld were openness and transparency and the accountability of public bodies. It did not address the factors against release in respect of the particular information under review, however it stated that, on balance, it considered that the public interest against release outweighed the public interest in favour of release.

Analysis

The FOI Act acknowledges that there is a public interest in promoting the openness and accountability of FOI bodies in the manner in which they perform their functions. However, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). Furthermore, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy.

As noted above, the public interest in protecting the right of privacy of persons, including deceased persons, is expressly stated in the FOI Act. In addition, the 37(8) Regulations recognise the public interest in maintaining the confidentiality of personal information relating to a deceased individual.

The statutory privacy rights afforded by the FOI Act relating to the personal information of a deceased person will be set aside by this Office only where the public interest served by granting the request (and breaching those rights) outweighs the public interest in protecting privacy.

I accept that there is a public interest in openness and accountability in relation to the actions of public bodies. The applicant-�s position appears to be that the limited information withheld by the Department could shed light on how the Department and/or An Garda Síochána (AGS) carried out its functions.

However, it seems to me that the information withheld in this case would not necessarily shed any light on how the Department or AGS carries out its functions. Furthermore, I must also have regard to the fact that the grant of access to a record under the Act is understood, effectively, to be equivalent to the record's release to the world at large.

While I have profound sympathy for the applicant, it appears to me that he has expressed what is, essentially, a private interest in the release of the information concerned. It is clear from the above judgments that I cannot, in making this decision on the right of access under FOI, take into account the applicant-�s private interest in the grant of access to the information withheld. Furthermore, in keeping with the comments of the Supreme Court, I am not aware of any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information in this case.

Having regard to the nature of the information sought, and given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the information sought that, on balance, outweighs the right to privacy of the individual to whom the information in question relates. I find therefore, that section 37(5)(a) does not apply. I find that the Department was justified in its refusal to grant access to the information concerned under section 37 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision. I find that the Department was justified in its effective reliance on section 15(1)(a) to refuse access to additional records relating to the applicant-�s request. I also find that the Department was justified in refusing access to the remaining information in record 2 on the basis of section 37(1) of the FOI Act. I find that, on balance, the public interest does not warrant the release of this third party personal information.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
 

Deirdre McGoldrick
Senior Investigator